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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA 

DONJA SEAWELL 

on behalf of herself and all others 

similarly situated 

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Plaintiff, ) Civil Action No. 05-CV-479 

vs, 

UNIVERSAL FIDELITY
 

CORPORATION 

Defendant. 

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CLASS ACTION
 

PLAINTIFF'S SURREPLY MEMORANDUM OF LAW
 

IN FURTHER OPPOSITION TO DEFENDANT'S
 

MOTION FOR PARTIAL SUMMARY JUDGMENT
 

Defendant Universal Fidelity Corporation moved for partial summary judgment 

on April 24, 2006, arguing that the "maximum amount that can be awarded to the class is 

$3,550." (See Docket Number 27). In her opposition to Defendant's motion for partial 

summary judgment, Plaintiff explained why Defendant's motion must be denied and that 

any calculation to the statutory recovery for the class must be made at the time of trial 

based upon a broad range of evidence concerning Defendant's financial status. (See 

Docket Number 33). Defendant sought leave to file a reply brief in further support of its 

motion for partial summary judgment, which was granted by order of this Court dated 

March 8, 2007. (See Docket Number 50). 

In that reply brief, Defendant now argues for the first time that it is not seeking to 

limit the class's recovery to any particular financial amount, but only a ruling as to "how" 

Defendant's net worth is to be calculated. (Defendant's Reply Brief at 4). Defendant's 

new position is simply specious. First, Defendant's original motion clearly seeks to limit 

Case 2:05-cv-00479-LP Document 55 Filed 03/26/07 Page 1 of 4
~he class's recovery to a specific monetary figure, namely "$3,550." That is what 

Defendant argues in its original motion and that is what it articulates in its supporting 

laffidavit and proposed order. Moreover, the issue of how net worth is to be calculated, 

lalthOUgh an important issue as Plaintiff explains in her response in opposition, is not 

IdiSPositive of any claim in this case. The method itself, therefore, is not a proper subject 

for a motion for summary judgment. The facts as to "how" Defendant maintains its 

financial records and whether that method properly reflects its net worth for FDCPA 

purposes is very much contested in this case, and thus cannot be resolved at the summary 

judgment stage. 

Furthermore, this Court may not take into consideration, either for purposes of 

summary judgment or for trial, Plaintiffs demand letter dated December 13, 2005, which 

Defendant marks as Exhibit "B" to its motion seeking leave to file a reply brief. As is 

plain from the face of the letter, it is written for purposes of compromise and entitled to 

the protections of Federal Rule of Evidence 408. It is certainly not factual evidence in 

this case or a factual basis upon which to make any legal rulings, either at summary 

judgment or any other stage. See Fed. R. Evid. 408. Accordingly, this Court must 

discount Defendant's arguments in its reply to the extent that they relate in any way to 

Case 2:05-cv-00479-LP Document 55 Filed 03/26/07 Page 2 of 4
Plaintiffs demand letter dated December 13,2005. 

Respectfully submitted, 

FRANCIS & MAILMAN, P.e. 

BY:	 hlJOHNSOUMnAS 

JAMES A. FRANCIS 

MARK D. MAILMAN 

JOHN SOUMILAS 

Land Title Building, 19th Floor 

100 South Broad Street 

Philadelphia, PA 1911 0 

(215) 735-8600 

Dated: March 19, 2007	 Attorneys for Plaintiff and the Class 

Case 2:05-cv-00479-LP Document 55 Filed 03/26/07 Page 3 of 4
filE D
 

( " ) , ~!'07 1\.. _ J I.) ,

CERTIFICATE OF SERVICE 

M~~?J¥ ":fz~U NZ, Clerk I, John Soumilas, hereby certify that, on this date, I caused a true and corre<8~ 0 Q. Dep. CIeri< 

foregoing Plaintiff's Motion Seeking Leave to File a Surreply to be served electronically 

in accordance with this Court's ECF procedures, upon the following individual: 

Mr. Norman W. Briggs, Esquire 

Frey, Petrakis, Deeb, Blum, Briggs & Mitts, PC.. 

1601 Market Street 

Suite 2600 

Philadelphia PA 19103 

FRANCIS & MAILMAN, P.e. 

/s/ JOHN SOUMILAS 

JAMES A. FRANCIS 

MARK D. MAILMAN 

JOHN SOUMILAS 

Attorneys for Plaintiff 

Land Title Building, 19th Floor 

100 South Broad Street 

Philadelphia, PA 19110 

(215) 735-8600 

DATE: March 19, 2007 

Case 2:05-cv-00479-LP Document 55 Filed 03/26/07 Page 4 of 4